To Post or Not to Post? Best Practices for Attorneys Using Social Media

To Post or Not to Post? Best Practices for Attorneys Using Social Media

By: Collins Einhorn Farrell

You just won a major legal battle on behalf of your client. You can’t wait to post about your victory on Facebook, LinkedIn, Twitter, and Instagram. You start typing up a long narrative of your win on your social-media pages. But wait, you think, are there any ethical rules I should consider before posting?

Ethical Considerations of Social-Media Posts

The State Bar of Michigan recently issued responses to frequently-asked questions (FAQs) regarding use of social media. The State Bar clarifies in the FAQs that attorneys must comply with the Michigan Rules of Professional Conduct when they post about themselves or their firms on social media. Although the FAQs aren’t formal ethics opinions, they provide guidance on the best practices for use of social media.

The State Bar explains that social-media posts promoting successes or accomplishments are attorney communications about legal services, which must comply with MRPC 7.1 (communication concerning services) and MRPC 7.3 (solicitation). For example, attorneys can’t make materially misleading statements about their services or unsubstantiated comparisons with other attorneys on social media—just as they couldn’t in television or print advertisements.

To avoid running afoul of MRPC 1.6, attorneys should also avoid posting secrets or confidences about their clients on social media without their clients’ informed consent. The State Bar encourages attorneys, in advance of publication, to provide the proposed text of social-media posts to clients whose cases will be featured.

Another rule that may be implicated is MRPC 3.6, which prohibits attorneys from making extrajudicial statements that they know or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing adjudicative proceedings. For example, attorneys involved in pending criminal matters should avoid expressing their opinions regarding the guilt or innocence of defendants on social media.

What this Means for Attorneys

When posting on social media, attorneys must exercise caution to ensure that the content complies with the Michigan Rules of Professional Conduct. Social-media posts about successes or accomplishments must comply with the ethical rules governing advertisement and solicitation. If a post could reveal a client’s identity or confidence, the best practice is to obtain informed consent by showing the client the proposed post in advance of publication. Finally, attorneys should avoid posting about a pending trial or adjudicative proceeding on social media if doing so could materially prejudice the trial or proceeding.

Have questions or looking for further information? Contact one of our attorneys.